Judge: Helen Zukin, Case: 22SMCV01873, Date: 2023-01-03 Tentative Ruling

Case Number: 22SMCV01873    Hearing Date: January 3, 2023    Dept: 207

Background

Plaintiff Samantha Dewey-Gartner (“Plaintiff”) brings this action against Defendant The Warehouse Restaurant, Inc. (“Defendant”) alleging she was personally injured by one of Defendant’s employees while patronizing Defendant’s restaurant. Plaintiff’s operative Complaint, filed on October 17, 2022, asserts one cause of action against Defendant for negligence. Defendant brings this demurrer to Plaintiff’s Complaint, arguing it fails to set forth facts sufficient to constitute a cause of action for negligence against it under Code Civ. Proc. § 430.10(e) and is uncertain under Code Civ. Proc. § 430.10(f). Plaintiff opposes Defendant’s demurrer.

Demurrer Standard

When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

A special demurrer for uncertainty under Section 430.10(f) is disfavored and will only be sustained where the pleading is so unintelligible that a defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)

Analysis

            1.         Meet & Confer

At least five days before filing a demurrer, the demurring party is required to “meet and confer in person or by telephone” with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading to resolve the objections to be raised in the demurrer. (C.C.P. § 430.41.) Under Code Civ. Proc. § 430.41(a)(3) the demurring party is required to file and serve a declaration with the demurrer attesting to the “means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer” or a statement “[t]hat the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party.”

Defendant has not filed the declaration required by Code Civ. Proc § 430.41(a)(3) and thus the Court cannot determine whether Defendant satisfied its obligation to meet and confer with Plaintiff before bringing this demurrer. Nonetheless, the Court will consider the merits of Defendant’s demurrer. (C.C.P. §§ 430.41(a)(4).)

            2.         Negligence

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Plaintiff’s Complaint alleges she was a customer at Defendant’s restaurant and as she was returning to her table from the bathroom, one of Defendant’s employees stepped on her left foot, which resulted in a fracture to that foot. (Complaint at 4.)

Defendant argues the Complaint fails to assert any elements of a cause of action for negligence because the Complaint uses the word “negligently” to characterize the employee’s conduct. Defendant claims the statement “While Plaintiff was walking back to her table from the restroom, Defendant DOE 1, an employee of Defendant The Warehouse Restaurant, Inc., negligently stepped on Plaintiffs left foot” in the Complaint is a legal conclusion and not a factual allegation. (Demurrer at 4.) While Plaintiff’s characterization of the conduct as negligent is a conclusion, the allegation that Defendant’s employee fractured Plaintiff’s foot by stepping on it is factual.

The existence of a duty is presumed when a plaintiff claims to have suffered personal injury from alleged negligence. (See, e.g., Southern California Gas Leak Cases (2017) 18 Cal.App.5th 581, 587-588 [“Where alleged negligence has caused personal injury or property damage and economic loss, the existence of a duty of care is the rule, not the exception”].) Plaintiff’s Complaint alleges Defendant breached its duty not to physically injure her when its employee stepped on her foot. The Complaint also alleges Plaintiff was harmed by this breach in the form of a fracture to her foot. The Court finds the Complaint contains sufficient factual allegations to state a cause of action against Defendant for negligence.

The Court also finds the use of the word “negligently” in the Complaint does not render Plaintiff’s cause of action for negligence uncertain or unintelligible. The Complaint alleges in a plain and straightforward manner that Defendant’s employee stepped on and fractured Plaintiff’s foot while she was a customer at Defendant’s restaurant. These allegations are sufficient to put Defendant on notice of the nature of the claims being asserted against it.

Accordingly, Defendant’s demurrer is OVERRULED.

Conclusion

Defendant’s demurrer to Plaintiff’s Complaint is OVERRULED.